Joe Gersten 2

22 September 2002

Published in the Age and Sydney Morning Herald

By late 1992 he knew it was over. Pouring a friend a late night scotch in his luxury Florida home, Joe Gersten gestured around him. “All this is gone,” he said.
 
As county commissioner, and chairman of the Dade County Finance Committee, Gersten was the dominant politician in Dade Country, the largest regional government area in south-eastern USA. He oversaw a $US3 billion budget, and knew past, present and future US Presidents.
 
But now the Florida media said he'd been caught in a crack den sex orgy, smoking cocaine with four prostitutes and career criminals. Allegedly, after the April 29 orgy, the criminals had been arrested driving his car. Gersten's claim that the car was stolen from his driveway, while he slept alone inside his house, was disbelieved.
 
Since Gersten moved to Australia in 1993, claiming refugee status on grounds of political persecution, this small, tawdry scandal has led to a nine-year saga in the US and Australian courts, and media. It has involved hostile prosecutors, impassioned defences, and recently-surfacing evidence of a conspiracy to frame Gersten for murder. It has also enmeshed Bill Clinton's Attorney General, Janet Reno.
 
Later this year, a NSW Supreme Court judge will rule on Gersten v NSW Law Society. Over the society's opposition, Gersten is seeking to continue to practise law in NSW.
 
The enmity between Gersten and fellow Democrat Janet Reno, who in 1992 was the Dade region's state attorney, goes back to the 1970s. As a powerful reformist senator, Gersten had fought what he saw as Reno's more "reactionary" legislative ideas. He'd proposed a law creating a statewide prosecutor, meaning that for the first time Reno would have had someone looking over her shoulder.
 
Reno wasn't Gersten's only enemy: he and The Miami Herald were often at loggerheads. When Gersten "downzoned" a high-rise development to two storeys, the paper ran a headline: FOR SHAME, MR GERSTEN. Gersten promptly bought a full-page ad in the paper defending the downzoning, headed: FOR SHAME, MIAMI HERALD. EVEN IN SOVIET RUSSIA THEY'VE STOPPED REWRITING HISTORY.
 
Then, in April 1992, Gersten reported the car theft. Immediately Reno began two investigations: one into the theft, one into sex, drugs and Joe Gersten. Six months of lurid headlines followed.
No Gersten fingerprints were found at the "crack den". Hair analysis, the nation's state-of-the-art drug-testing technology, showed he'd not consumed cocaine.
 
Still, the primary witnesses - described in The Miami Herald as a crack-smoking streetwalker, a small-time dope dealer who killed someone 16 years earlier, another hooker with drug convictions and a man who was kicked out of the army for drug use - kept talking. Gersten was warned that if his answers on how his car was stolen contradicted theirs, he'd be charged with perjury.
 
So Gersten refused to answer questions. Ultimately, he was held in "civil contempt", and sent to Dade County Jail for three weeks - the only time in Florida history, according to a State Attorney's Office official, that the victim of a car theft had been jailed. Gersten knew the jailhouse well: a plaque stated it had been built through the efforts of, among others,  Commissioner Joseph Gersten.
 
Gersten's claim that the investigation was a Reno vendetta was greeted with widespread hilarity. In the March 1993 county elections, he lost office. Later that year, while he holidayed in Australia, he also lost his key legal battle against the contempt order. He faced indefinite further jail, without charge or trial, if he went home.
 
"I wasn't going to play the part of dancing bear on the courthouse steps again, for the evening news," he says.
 
Moving to Melbourne in 1993, Gersten claimed he'd been “purged from office by my long-time political enemy, US Attorney-General Janet Reno”. He first lived in Melbourne then moved to Sydney in 1996. Though far from Florida, he still crops up regularly in  The Miami Herald - compared to a yeti, Elvis, and less savory things.
 
Thesedays Gersten co-rents a modest flat in Cremorne, on Sydney's north shore. The luxury home, the Mercedes and the private plane have gone. So has the $US1.2 million in assets he'd amassed as a top-shelf lawyer. After the scandal, his banks called in their loans, and his fiancee broke off their engagement. Most of his friends and family cut links. “My brother, an appellate judge, moved his family 400 miles away. He didn't want his children to see their uncle humiliated on TV every night.”
 
In Australia, Gersten's death-by-media developed a macabre afterlife. In 1998 he was followed around Sydney by Richard Carleton and Sixty Minutes camera crews. According to Gersten, Carleton asked him: "Don't you want to apologise to the people of Australia?"
 
Reno now controlled the US Justice Department and the FBI. Gersten had long thought the FBI was behind moves against him by the Immigration Department - which opposed his claims for residency - and the NSW Law Society. But proof was hard to find.
 
Then a minor bureaucrat made a major error. Last year, during one of Gersten's innumerable legal battles, a Federal Court clerk mistakenly handed his legal team some of the Australian Government's files.
 
They were a bombshell. The "X Files", as they're now known in Sydney legal circles, revealed broad interference, emanating from Reno's Justice Department, and the FBI, in Gersten's attempts to obtain Australian residency and practise law. The information "chain" of documents and phone calls went from the FBI to the US Embassy in Canberra, then to the Australian Federal Police.
 
It was then disseminated to the Immigration Department, DFAT and the Law Society.
 
The FBI had broadcast that Gersten was involved in "corrupt activities", had an outstanding "warrant", and was a "fugitive from justice". Gersten says that when he read the X Files he was ``physically sick for over a week".
 
This month, a day after The Age's enquiries, the FBI wrote to Gersten's Florida lawyer, acknowledging that these allegations were untrue.
 
From 1996, Gersten had done pro bono legal work for Jose Ramos Horta. He'd become friends with East Timor activist Andrew McNaughtan, a Sydney doctor and long-term human rights activist. McNaughtan was intrigued - but Gersten's story sounded far-fetched.
 
But the more McNaughtan looked into the affair, the more he was persuaded Gersten was telling the truth.
 
In May last year, McNaughtan boarded a plane for Washington. There he met Republican Congressman Dan Burton, chairman of the powerful House Committee on Government Reform. The committee began an investigation into the Gersten saga. And the X Files were placed on the Congressional Record, just ahead of an Australian Federal Court order to return them, from an annoyed
Justice Whitlam.
 
Last August, Gersten received another treasure trove. His Florida lawyer finally got the "sex-drugs" files opened. They showed unequivocally that Gersten had not been in the crack den in April, 1992. And, furthermore, that the State Attorney's Office must have known this. Reno had personally involved herself in the case.
 
The files contain an array of mutually exclusive witness statements, and evidence that exonerates Gersten. But the real shocker was a file in which a witness had tried to implicate Gersten in the murder of Greg Wellons, a transvestite. The "witness" had quickly broken down, confessing that prostitute Lisa McCann, the key "crack den" witness, had promised him FBI money to tell the story.
 
The attorney's office had concealed the murder report - which would have destroyed McCann's credibility, and sunk the state's case. $400 of FBI money had been paid to McCann.
 
The murder report was kept secret for eight years. By the time the House Committee obtained the Gersten files from the State Attorney's Office, it had disappeared. McNaughtan says the report is "clear evidence of another crime _of framing Gersten for murder - which the State Attorney's Office never investigated".
 
Since 1993, the attorney's office has been run by Reno's protege, Katherine Rundle, who was also part of the 1992-3 Gersten investigation. An SAO official, Ed Griffith, put The Age's questions to Rundle.
 
Griffith acknowledged that "there were discussions about the Greg Wellons homicide". But he questioned the right of Gersten's lawyers to see the murder report, as it could damage the integrity of "an ongoing investigation".
 
Griffith's statement is highly significant, as it reverses the office's long-standing denials (including one under oath) of knowledge of the murder report.
 
The Age asked Griffith why the Gersten investigation continued after hair tests showed he'd not consumed cocaine.
 
"Joe decided to go to Europe on a vacation," Griffith said. "And he made sure he had a haircut... The test wasn't indicative of the time period involved. The test was relevant to the time period that Joe was in Europe."
 
But an affidavit, by the office's own chief "Gersten" investigator, shows that, at the time of the hair test, Gersten had one and a half inches of hair - easily enough to detect cocaine from the "crack den" incident. His (uncut) pubic and underarm hair were also tested. He had not had a haircut.
 
The Age asked Griffith why two of the "crack den" witnesses against Gersten - Kenneth Elswick and Claudia Lira - were released after questioning, when they were on charges (unrelated to Gersten) of "strongarm robbery" and kidnapping.
 
"The case was falling apart. It was a very weak case. We ascertained that we could never sustain a conviction."
 
When it was pointed out that Lira and Elswick were subsequently convicted on both charges, Griffith apologised "for mis-stating the case".
 
One of the three senior "Gersten" prosecutors was Richard Gregorie - the man who in 1988 indicted Panama dictator General Noriega for international drug trafficking.
 
The Age asked Gregorie why such a heavyweight prosecutor as he was assigned to a couple of sex-drugs misdemeanours.
 
"I don't think it was a matter of minor charges. A high-profile politician was involved. His car had legal records in it. Someone needs to...see what the car thieves are doing with them, etcetera."
 
McNaughtan responds: "Gregorie was precluded by law from investigating the car theft case, and had no role in investigating potential blackmail - related to Gersten's papers or anything else."
 
Gregorie also said Gersten jumped bail when he left the US. Yet a Florida appellate court order confirms that Gersten was not on bail, and had no travel restrictions. Finally, Gregorie denied any knowledge of the murder report. However, The Age  has a document from his office that verifies his possession of it.
 
In 1993 an FBI probe seized files from Gersten's office. This investigation was closed in 1996, finding no evidence of wrongdoing by Gersten.
 
That didn't seem to deter the FBI. In December 1997 an FBI agent  at the US Embassy in Canberra sent the Australian Federal Police a report containing fabricated information on Gersten. The report had been supplied to the Embassy by Sydney private investigator (and former Floridian) Langdon Rogers, who has since died.
 
The Age has learned, from a former close friend of Rogers, that Rogers claimed to have been an ex-employee of the Central Intelligence Agency. The friend says he observed Rogers being periodically debriefed by visiting CIA agents.
 
A spokesman for the US Embassy acknowledges receiving some unsolicited material on Gersten from Rogers. But he said the Embassy had "no knowledge" of the "alleged" report.
 
The Age has a copy of the report. So does the House Committee in Washington, which has interviewed the FBI agent concerned as to why she sent it to the Australian Federal Police.
 
Last year, Reno herself was summoned before the House Committee over the Gersten affair.
 
The committee's report, published two weeks ago concluded that it appeared “someone was involved in an effort to frame Gersten for crimes he did not commit", and that “the vast power of the state was used to destroy him”. The report criticises the misinformation passed onto Australian authorities. The report also censures the State Attorney's Office for its "ongoing effort to withhold significant information from Congress", and recommends a Justice Department investigation into the whole matter.
 
Gersten's foes point out that the committee is Republican-dominated and its chairman, Dan Burton, is a longtime critic of Reno, having investigated her for eight years over the Waco killings and a host of other matters.
 
Still, all the revelations to date paint Gersten as "clean". This raises serious questions about the actions of the Australian Federal Police, who passed on FBI misinformation about him to two government departments and the law society. The AFP was warned by Gersten's lawyers in 1998 that the FBI "information" could be disproved. The AFP declined numerous requests for comment by The Age, as did the NSW Law Society and the Immigration Department.
 
Why does Gersten think all this happened? "It was like Murder on the Orient Express,” he says. “All the suspects put the knives in for their own reasons. Reno because of her old  obsession with me. Rundle because she inherited it from Reno, and couldn't get rid of it. The media in general because - well, who in the media can resist sex, drugs and politics?”
 
Gersten now wants the Australian authorities to take a second look at his case. “I've spent eight years fighting to make a life for myself in Australia - a country I've come to call home. The only respite I've had is when I've been asleep - and sometimes not even then. Maybe now I can climb off the pages of a Kafka novel, and have my life back."